delhi high court

Delhi High Court: A petition was filed seeking issuance of writ in the nature of certiorari for quashing of order dated 08-08-2023, passed by the Deputy Secretary (Home), Government of NCT of Delhi, and for issuance of writ of mandamus directing the respondent to release the petitioner on parole for a period of 12 weeks and also to determine whether, in the face of a rejected parole application, the preservation of familial lineage through procreation constitutes a compelling enough ground to warrant intervention. Swarana Kanta Sharma, J., granted the plea for parole to facilitate medically-assisted procreation, due to the advanced age of the convict and his wife, is grounded in a genuine desire to protect and preserve their lineage because even a convict does not forfeit their fundamental rights and remains entitled to equal consideration before the law.

The petitioner is presently confined in jail and is serving a life sentence for being convicted in a case registered under Sections 302, 201 and 404 of Penal Code, 1860 (‘IPC’), and was awarded rigorous imprisonment for life by the Trial Court. The petitioner has spent over 14 years in prison, excluding the remission period. The appeal against conviction was dismissed, pursuant to which the wife of the petitioner filed for a grant of parole on the ground that the petitioner and his wife want to protect their lineage by way of procreating their child to secure their family tree which was thereby dismissed.

The Court noted that the petitioner was convicted and was incarcerated for last 14 years. He is about 41 years of age, whereas his wife is 38 years of age. A convict does not become a lesser citizen only due to his incarceration, and his fundamental rights are of equal importance and must be given equal weightage as any other free citizen. It is a human tendency and a natural desire for an individual to have biological children which can be for the purpose of adding value or meaning to their lives. It also can be to ensure a family lineage and save their family tree. Therefore, seeking parole to have children, when the biological clock of the convict and his wife are moving in the opposite direction, to become a barrier after a few years to have a child, should not be considered as if it is for conjugal relations or for any other fulfillment, but to ensure the right to procreation.

The Court remarked that “this Court is not dealing with prayer for grant of parole for the purpose of maintaining conjugal relationship and conjugal rights while being imprisoned in the present order, or allowing conjugal visits. This Court is dealing with the fundamental right of a convict, to undergo treatment required, to have a child while being granted parole on this ground itself, within the parameters of law and rules governing the grant of parole under the Delhi Prisons Rules, 2018. Thus, justice cannot be artificial but real as reality of human life, and must adjudicate cases keeping in mind the same.” Thus, the judicial decisions must be a fine and delicate combination of upholding the fundamental right of the convict in each circumstance without losing sight of the realities of life and legitimate human desires and thus, in the process upholding the view that prisoners are humans too.

The Court concluded that the right to life under Article 21 will include the right of a convict to have a child when he is not blessed with a biological child by being extended the relief of grant of parole for this purpose where he needs medical assistance and the biological clock due to his age may weaken and make prospects of having a child bleak.

The Court granted parole to the petitioner subject to following conditions:

  1. The petitioner shall furnish a personal bond in the sum of Rs.20,000/- with one surety of the like amount, to the satisfaction of the Jail Superintendent.

  2. The petitioner shall not leave District Nainital, Uttarakhand except to travel to and from Central Jail, Mandoli, Delhi, without permission of the court and shall ordinarily reside at the address mentioned in the application;

  3. The petitioner will report on every Wednesday to the SHO P.S. Kathgodam, District Nainital, Uttarakhand between 11 am and 11:30 am for marking his appearance. However the petitioner will not be kept waiting for longer than one hour at the police station during such visits;

  4. The petitioner shall furnish a telephone/mobile number to the Jail Superintendent as well as SHO of local police station, on which he can he contacted if required. The said telephone number shall be kept active and operational at all the times by the petitioner.

  5. If the petitioner has a passport, he shall also surrender the same to the Jail Superintendent

  6. Immediately upon parole’s expiry, the petitioner shall surrender before the Jail Superintendent.

  7. The period of parole shall be counted from the day when the petitioner is released from jail.

[Kundan Singh v. State, 2023 SCC OnLine Del 8364, decided on 22-12-2023]

Advocates who appeared in this case :

Mr. Ashutosh Kaushik, Advocate for petitioner

Ms. Rupali Bandhopadhya, ASC for the State with Mr. Abhijeet Kumar, Advocate. SI Karan Pal, PS: Mehrauli

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